Pegg et al v. Klempa
Filing
89
MEMORANDUM OPINION AND ORDER GRANTING 50 DEFENDANT HERRNBERGER'S MOTION FOR SUMMARY JUDGMENT, GRANTING 51 DEFENDANT KLEMPA'S MOTION FOR SUMMARY JUDGMENT,DENYING 49 PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT, AND DENYING AS M OOT ALL MOTIONS IN LIMINE 42 43 44 45 46 47 . It is ORDERED that this case be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 7/31/2015. (copy to counsel of record via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BRANDON PEGG and KRISTINA PEGG,
husband and wife,
Plaintiffs,
v.
Civil Action No. 5:13CV173
(STAMP)
NATHAN TYLER KLEMPA, individually and
in his capacity as agent and employee
of the City of Glen Dale Police Department
and GRANT HERRNBERGER, individually and
in his capacity as an agent and employee
of the West Virginia State Police,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT HERRNBERGER’S MOTION FOR SUMMARY JUDGMENT,
GRANTING DEFENDANT KLEMPA’S MOTION FOR SUMMARY JUDGMENT,
DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT,
AND DENYING AS MOOT ALL MOTIONS IN LIMINE
I.
Procedural History
Brandon Pegg (“Mr. Pegg”) and Kristina Pegg (“Mrs. Pegg”)
(collectively, “plaintiffs”), assert claims for excessive force,
unlawful
detention/arrest,
outrage/intentional
infliction
of
emotional distress, battery, and civil conspiracy pursuant to 42
U.S.C. § 1983, the West Virginia Constitution, and other state
statutes.
These claims arise out of a traffic stop that occurred
in December 2012 which was initially performed by defendant Nathan
Tyler
Klempa
(“Klempa”).
Defendant
Grant
Herrnberger
(“Herrnberger”) later arrived on the scene in response to Klempa’s
call for backup and thus claims against Herrnberger arise from that
point forward.
Based on an amended scheduling order, motions in limine were
due prior to dispositive motions.
motions in limine.
Thus, the parties filed several
Thereafter, the plaintiffs filed a partial
motion for summary judgment, Herrnberger filed a motion for summary
judgment, and Klempa filed a motion for summary judgment.
The
plaintiffs’ partial motion for summary judgment addresses the
following claims:
unlawful arrest of Mr. Pegg (Count III),
unlawful detention and arrest of Mrs. Pegg (Count IV), excessive
force toward Mr. Pegg (Count V), battery toward Mr. Pegg (Count
VII), and battery toward Mrs. Pegg (Count VIII).
II.
Facts
As this is a motion for summary judgment, and this Court will
consider the defendants’ qualified immunity defense, this Court
will
consider
the
facts
in
the
light
most
favorable
to
the
plaintiffs.
The parties agree that the traffic stop at issue occurred on
New Year’s Eve, 2012; around 7:00 p.m.; and that the initial stop
was conducted because of a burned out license plate light on Mr.
Pegg’s vehicle. Mr. Pegg confirmed during his deposition that when
Klempa requested his license and insurance information, instead of
providing the information he responded “What have I done?” ECF No.
50-3 at 43.
Mr. Pegg testified that Klempa responded, “Give me
2
your driver’s license and proof of insurance, and I will tell you.”
to which Mr. Pegg responded, “This is bullshit.”
Id. at 43-45.
Further, Mr. Pegg testified that he could not recall exactly what
was said but that Mr. Pegg was “immediately agitated” and that it
was possible that when Klempa first asked for his license and
insurance information Mr. Pegg also stated, “What the hell did I do
this time?
This is nuts.”
Id. at 48-50.
Mr. Pegg testified that
after he provided the information to Klempa, Klempa then told him
why he had been pulled over.
Id. at 46-47.
Mr. Pegg and Mrs. Pegg
both stated that Klempa had not been rude or offensive during this
initial interaction.
Id. at
53; ECF No. 50-5 at 40.
Further, Mr. Pegg testified that at this point, Klempa would
not have known who or what was in Mr. Pegg’s car.
51-52.
ECF No. 50-3 at
Additionally, Mr. Pegg stated that when Klempa was talking
to him at the car window “[Klempa] might not be over the roadway.
He’s very close . . .
to the - - the line.”
If I would open the door, it’d be very close
Id. at 52.
Mr. Pegg also testified that
vehicles were passing by on the roadway at this time.
Mr.
Pegg
then
testified
that
after
being
Id.
stopped
approximately five minutes, more police officers arrived.
64-65.
for
Id. at
However, Mr. Pegg stated that he believed the entire stop
took over twenty minutes to be completed.
Id. at 65.
After the
other officers arrived, Mr. Pegg testified that he was asked to
exit his vehicle by Klempa and that he responded “No.”
3
Id. at 65-
66.
Mr. Pegg further testified that his door was then opened and
he was asked again, by Herrnberger this time, to exit the vehicle
to which he responded “Why?”
Id.
Mr. Pegg stated that Klempa’s
request was in a lower tone and that Herrnberger’s request was in
a more aggressive tone.
Id. at 68.
Specifically, regarding the
use of force by Herrnberger, Mr. Pegg confirmed that the officers
opened the car door after Mr. Pegg refused their requests and that
Herrnberger unbuckled his seat belt. ECF No. 50-3 at 66. Further,
Mr. Pegg testified that he got out of the car on his “own free
will” after “they” began to jerk him out of the car, or “grabbed”
him.
Id. at 71.
Mr. Pegg then freely left the vehicle, and
walked freely to the back of the vehicle.
Id. at 67-80.
During
this interaction, Mr. Pegg stated that the officers were either on
the fog line1 or over it.
Id. at 72.
After moving to the rear of the vehicle, Mr. Pegg testified
that at one point, Herrnberger stated, “When a police officer tells
you to do something, you do it.”
Id. at 70.
Mr. Pegg stated that
after being removed from the vehicle, he followed all other
instructions from the officers.
Id. at 77-78.
Mr. Pegg testified
that once at the rear of his vehicle, he was asked by Herrnberger
if he had anything illegal in the vehicle and he responded “No.”
1
A “fog line” is the white line on the right-hand side of a
road, separating the lane for travel from the shoulder. Melanie D.
Wilson, “You Crossed the Fog Line!”-Kansas, Pretext, and the Fourth
Amendment, 58 U. Kan. L. Rev. 1179, 1213 (2010).
4
Id. at 81.
Mr. Pegg was then told, by Klempa, that he was under
arrest for obstructing an officer to which he responded, “No. I
don’t feel like I have done anything.”
Id. at 81-82.
Mr. Pegg
testified that Klempa then placed Mr. Pegg’s arms behind his back,
handcuffed him, and placed him in Klempa’s police cruiser.
82.
Id. at
Mr. Pegg testified after the removal from the vehicle, that
other than being handcuffed, patted down, and placed in the police
cruiser,
he
was
able
to
walk
freely
physically harmed by the police officers.
and
was
otherwise
not
Id. at75-80.
Before Mr. Pegg was placed in the police cruiser, Mrs. Pegg
had been yelling to officers through the vehicle window inquiring
as to what was going on.
ECF No. 50-5 at 51.
Mrs. Pegg then
opened the car door, stuck her head out, and asked why her husband
was being placed in handcuffs because “no one was paying attention”
to her when she was just speaking through the window.
Id.
Herrnberger then returned to the vehicle where Mrs. Pegg was still
sitting and told her to shut her door or she might be arrested,
that Mr. Pegg was being arrested because he did not do what the
officers told him to do, and that officers “do things for our
safety and for yours . . . .”
Id. at 50-52.
Mrs. Pegg testified
that she then shut her door and then opened it again.
Id. at 52.
Herrnberger then told Mrs. Pegg to shut the door or she would go to
jail.
Id.
license.
Herrnberger then asked Mrs. Pegg for her driver’s
ECF No. 48-4 at 83.
Mrs. Pegg stated that her license
5
was then run through a computer check and returned to her before
Herrnberger asked her a second time for her license.
Id. at 85.
Mrs. Pegg’s license was then returned to her a second time and
Herrnberger then ordered her to get out of the vehicle.
Id. at 87.
Mrs. Pegg was then asked by Herrnberger to raise her shirt to
reveal her waist and see if she had any weapons.
Id. at 87-88.
Mrs. Pegg testified at her deposition that Herrnberger then
completed a Terry2 frisk of her and also asked her if she had any
weapons or drugs.
Id. at 93; ECF No. 50-5 at 53.
Thereafter, Mrs.
Pegg asserts that a search of the truck was completed by both
Herrnberger and Klempa without Mrs. Pegg’s permission and a search
of Mrs. Pegg’s purse was completed by Klempa with Mrs. Pegg’s
permission. Id. at 100. Mrs. Pegg testified that Klempa completed
a search of her purse, the passenger compartment, and passenger
areas of the vehicle.
Id.
However, Mrs. Pegg stated that
Herrnberger was on the driver’s side and she could not see what he
was doing.
Id.
Mr. Pegg testified at his deposition that Mrs.
Pegg told him that her purse was searched and that the passenger
compartment was searched.
ECF No. 66-2 at 93-95.
Mrs. Pegg also
testified that the officers made disparaging remarks about Mr.
Pegg’s profession and about her father-in-law.
ECF No. 50-5.
Mrs. Pegg further stated that Klempa came up to her with a bag
of cookie crumbs and asked her if the crumbs in the bag were
2
Terry v. Ohio, 392 U.S. 1 (1968).
6
“shake” (marijuana), to which she replied it was not.
Id. at 113.
Mr. Pegg testified that Klempa repeated this question to him while
he was in the police cruiser.
ECF No. 50-3.
Mrs. Pegg also
testified that a bag of jalapeno peppers had been ripped open and
that the bag was on the passenger side of the vehicle.
4.
ECF No. 48-
No weapons or contraband were found in either the vehicle or
Mrs. Pegg’s purse.
vehicle.
Mrs. Pegg was then free to drive away in the
Mr. Pegg’s obstruction charge was later dismissed.
Based on the analysis that follows, this Court finds that the
plaintiffs’ partial motion for summary judgment should be denied
and
both
defendants’
motions
for
summary
judgment
granted.
Consequently, all pending motions in limine are denied as moot.
III.
Applicable Law
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.” Temkin v. Frederick
County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied,
502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986)).
However, as the United States Supreme
Court noted in Anderson, “Rule 56(e) itself provides that a party
opposing a properly supported motion for summary judgment may not
rest upon the mere allegations or denials of his pleading, but
7
. . . must set forth specific facts showing that there is a genuine
issue for trial.”
Id. at 256.
“The inquiry performed is the threshold inquiry of determining
whether there is the need for a trial-whether, in other words,
there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in
favor of either party.”
Id. at 250; see also Charbonnages de
France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary
judgment “should be granted only in those cases where it is
perfectly clear that no issue of fact is involved and inquiry into
the facts is not desirable to clarify the application of the law.”
(citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th
Cir. 1950))).
In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the party
opposing the motion.
See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
IV.
A.
Discussion
Qualified Immunity Standards
This Court will consider the defendants’ qualified immunity
defenses first as this Court finds that the defendants are entitled
to qualified immunity and thus the defense is dispositive.
1.
Federal Standard
“Where the defendant seeks qualified immunity, a ruling on
that issue should be made early in the proceedings so that the
8
costs and expenses of trial are avoided where the defense is
dispositive.”
Saucier v. Katz, 533 U.S. 194, 200-01 (2001).
The
defense of qualified immunity allows a defendant to avoid trial and
other litigation expenses.
Id.
Thus, qualified immunity is “an
immunity from suit rather than a mere defense to liability; and
like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.”
Id. (citation omitted).
Accordingly, it is important to resolve immunity questions first so
as to fulfill those policy considerations.
Id. (citing Hunter v.
Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)
(per curiam)).
Analysis of a qualified immunity defense by a law enforcement
officer requires a two-part inquiry.
Saucier, 533 U.S. at 201.
The first question is whether the facts alleged, when viewed in the
light most favorable to the injured party, “show the officer’s
conduct violated a constitutional right.” Id. The second question
is whether the constitutional right was clearly established at the
time of the violation.
Id.
Qualified immunity is abrogated only
upon a showing that the officer’s conduct violated a constitutional
right and that such right was clearly established at the time the
conduct occurred.
Id.
This Court may “exercise [its] sound
discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the
circumstances
in
the
particular
9
case
at
hand.”
Pearson
v.
Callahan, 555 U.S. 223, 236 (2009).
Thus, where either prong is
met, the officer or officers are entitled to summary judgment. Id.
2.
West Virginia Standard
The West Virginia Supreme Court has set forth the following
test for qualified immunity:
[I]n the absence of any wilful or intentional wrongdoing,
to establish whether public officials are entitled to
qualified immunity, we ask whether an objectively
reasonable official, situated similarly to the defendant,
could have believed that his conduct did not violate the
plaintiff’s constitutional rights, in light of clearly
established law and the information possessed by the
defendant at the time of the allegedly wrongful conduct?
Hutchison v. City of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996).
Thus, state statutory or constitutional claims are subject to the
same two-part inquiry as set forth above: “(1) does the alleged
conduct set out a constitutional or statutory violation, and (2)
were the constitutional standards clearly established at the time
in question?”
alleged
Id.
conduct
malicious,
or
However, under this standard, the defendants’
must
also
otherwise
be
found
oppressive”
to
to
not
the
be
“fraudulent,
plaintiff.
West
Virginia Reg’l Jail & Corr. Facility Auth. v. A.B., 766 S.E.2d 751,
762 (W. Va. 2014). As such, an additional inquiry is required when
considering a qualified immunity defense to state claims.
3.
General Claims of the Parties
Herrnberger asserts that he is entitled to qualified immunity
as it was reasonable for him to believe that his actions were
reasonable pursuant to clearly established laws and the underlying
10
circumstances.
Herrnberger cites the following: (1) he had no
reason to disbelieve Klempa’s statements as to why he stopped the
vehicle and that the vehicle was stopped lawfully; (2) his belief
that Mr. Pegg was obstructing by refusing to exit the vehicle was
reasonable; (3) it was reasonable for Herrnberger to believe, based
on Mr. Pegg’s behavior, that he could remove him from the vehicle;
(4) it was reasonable for Herrnberger to believe he could obtain
Mrs. Pegg’s license before releasing the vehicle to her and to
order her to exit the vehicle given her defiant behavior; and (5)
it was reasonable for Herrnberger to frisk Mrs. Pegg given the
circumstances.
Klempa argues that he is entitled to qualified immunity
because his actions were reasonable and not outside the realm of
clearly established law and, furthermore, were not violative of the
plaintiffs’ constitutional rights.
Klempa concedes in his reply
that Rodriguez v. United States, 135 S. Ct. 1609, 1615, 191 L.Ed.2d
492 (2015), is clearly established law but contests its application
to this case because the underlying traffic stop occurred in 2012.
Further, based on the facts, Klempa argues that his actions were
reasonable.
The plaintiffs assert that neither Herrnberger nor Klempa are
entitled to qualified immunity as the duration of the stop was
extended past a point where Mr. Pegg was required to exit the
vehicle.
The plaintiffs argue that after Klempa had acquired Mr.
11
Pegg’s information, confirmed the validity of his information, and
determined
that
he
was
only
giving
Mr.
Pegg
a
warning,
the
rationale for extending the stop ended and there was no longer a
need to control the scene.
Further, the plaintiffs contend that it was unnecessary for
Mr. Pegg to exit the vehicle as (1) Klempa has conceded it was
unnecessary for Mr. Pegg to see the burned out light bulb, (2)
Klempa had already been standing in the lane of traffic talking to
Mr. Pegg for an extended time period and thus removing himself from
that lane of traffic is not a supported rationale, (3) the cell
phone video taken by Mrs. Pegg shows that “safety” considerations
were not at issue, and (4) the claimed grounds for removing Mr.
Pegg from the vehicle do not appear in the criminal complaint
charging Mr. Pegg with obstruction.
Moreover,
the
plaintiffs
assert
that
Herrnberger
is
not
entitled to qualified immunity as to Mr. Pegg’s claims because he
failed to familiarize himself with what was going on before pulling
Mr. Pegg out of the vehicle and thus incorrectly determined that
such action was necessary.
The plaintiffs argue that as to Mrs.
Pegg’s claims, the defendants have not provided any evidence that
reasonable suspicion existed for the search of Mrs. Pegg, her
personal belongings, or the contents of the vehicle.
In reply, Herrnberger reiterates that Mr. Pegg could be asked
to step out of the vehicle based on the initial suspicion for the
12
traffic
stop.
Herrnberger
argues
that
this
is
so
because
Herrnberger was informed of the basis for the lawful stop, and Mr.
Pegg had not received a citation or warning when he was ordered to
exit.
Further, Herrnberger contends that the plaintiffs have
failed to substantiate a claim that Mr. Pegg was asked to exit the
vehicle for any other reason other than to address the traffic
violation that warranted the stop or to attend to safety concerns.
Moreover, Herrnberger argues that the officers’ state of mind does
not matter as long as their actions were objectively reasonable.
As to Mrs. Pegg, Herrnberger argues that the plaintiffs have failed
to object to Herrnberger’s presentation of the law and facts
regarding Mrs. Pegg’s claims for unlawful arrest, detainment, and
search.
Further, Herrnberger asserts that the plaintiffs failed to
respond to Herrnberger’s claims that he is entitled to qualified
immunity
for
Counts
IV,
V,
VI,
VII,
VIII,
and
IX
(unlawful
detention and arrest of Mrs. Pegg, excessive force toward Mr. Pegg,
tort of outrage/IIED, battery against Mr. Pegg, battery against
Mrs. Pegg, and civil conspiracy, respectively) and thus Herrnberger
should be granted summary judgment as to those claims.
Moreover,
Herrnberger argues that even under the plaintiffs’ unpled extension
of the stop argument, Rodriguez was a case decided in 2015 and thus
was not clearly established law at the time of the stop of the
13
Peggs in 2012.
Klempa’s briefs in response reflect similar
arguments.
B.
Qualified Immunity: Constitutional Injury
1.
Counts III and V: Unlawful Arrest and Use of Force - Mr.
Pegg
This Court will review the plaintiffs’ claims regarding the
length of the stop, validity of the arrest, and the defendants’ use
of force altogether in this section.
a. Herrnberger
i.
Length of Stop
The United States Court of Appeals for the Fourth Circuit has
found that the time reasonably required for a routine traffic stop
“cannot
be
stated
with
mathematical
precision.
Instead,
the
appropriate constitutional inquiry is whether the detention lasted
longer than necessary, given its purpose.”
Branch, 537 F.3d 328, 335 (4th Cir. 2008).
noted:
“Observing
a
traffic
violation
United States v.
As the Fourth Circuit
provides
sufficient
justification for a police officer to detain the offending vehicle
for as long as it takes to perform the traditional incidents of a
routine traffic stop.”
Id. at 335-36 (citations omitted).
Thus,
pursuant to such a stop, a police officer may “request a driver’s
license and vehicle registration, run a computer check, and issue
a citation.” United States v. Foreman, 369 F.3d 776, 781 (4th Cir.
2004); see also Rodriguez, 135 S. Ct. at 1615; Branch, 537 F.3d at
335-36.
Thus, “once the driver has demonstrated that he is
14
entitled to operate his vehicle, and the police officer has issued
the requisite warning or ticket, the driver ‘must be allowed to
proceed on his way.’”
Branch, 537 F.3d at 336 (citing United
States v. Rusher, 966 F.2d 868, 876 (4th Cir. 1992)); see also
Rodriguez, 135 S.Ct. at 1615.
However, “if the driver obstructs the police officer’s efforts
in any way . . . a longer traffic stop would not be unreasonable.”
Branch, 537 F.3d at 336 (citation omitted).
On the other hand,
“[o]n-scene investigation into other crimes . . . [and] safety
precautions taken in order to facilitate such detours are” not
considered
encompassed
Rodriguez,
135
recognized
that
S.Ct.
in
at
the
mission
1616.
The
“[h]ighway
and
of
the
Supreme
officer
initial
Court
safety
are
has
stop.
thus
interests
different in kind from the Government’s endeavor to detect crime in
general or drug trafficking in particular.”
Id. (citing the
difference between asking a defendant to exit a vehicle, as in
Mimms, and prolonging a stop for a dog sniff).
(a)
Exiting the Vehicle
An officer may “as a matter of course order the driver of a
lawfully stopped car to exit his vehicle.”
Id. (quoting Maryland
v. Wilson, 519 U.S. 408, 410 (1997) (citing Pennsylvania v. Mimms,
434 U.S. 1906 (1977)(per curiam)). This is so because an officer’s
decision
to
order
suspects
from
the
vehicle
“is
a
valid
precautionary measure designed to afford a degree of protection to
15
the investigating officer.” United States v. Taylor, 857 F.2d 210,
214
(4th
Cir.
1988).
Moreover,
the
“incremental
intrusion”
resulting from an officer’s request that an individual exit the
vehicle is de minimus when compared to the legitimate concerns
about the officer’s safety.
Mimms, 434 U.S. at 108-111.
The same
bright line rule extends to the passengers of the vehicle.
See
Wilson, 519 U.S. at 410.
In this case, it was reasonable for Herrnberger to believe
that the traffic stop could be extended past the initial encounter
that Klempa had with Mr. Pegg.
When Herrnberger arrived, after a
backup call was received from Klempa, Herrnberger testified that
Klempa told him that Mr. Pegg was agitated and that he wanted to
show Mr. Pegg the burned out license plate light.
Based on the
above cited law, it was reasonable for Herrnberger to believe that
Mr. Pegg could be asked to exit the vehicle.
When Herrnberger arrived on scene, the traffic stop had not
ended as Klempa was still checking Mr. Pegg’s information and Mr.
Pegg had not been issued a warning or citation.
Further, Mr. Pegg
himself testified that he was “immediately agitated” when Klempa
requested his information and that when Klempa approached the
vehicle he was close to the fog line and there was traffic going by
at that time.
Additionally, the video taken by Mrs. Pegg and the
testimony of both plaintiffs shows that vehicles were passing by
the stopped vehicle and that the officers would be right beside or
16
over the fog line on the driver’s side of the vehicle.
Thus, it
was reasonable for Herrnberger to believe that Mr. Pegg could be
asked to exit the vehicle as an “incremental intrusion” to show him
the burned out license plate light and for officer safety reasons.
Mimms, 434 U.S. at 108-111.
Moreover, Mr. Pegg testified that when the other officers
arrived, only five minutes had passed.
Thus, such a short period
of time, which allowed Klempa to check Mr. Pegg’s information, was
not unconstitutionally long.
Further, as discussed later in this
opinion, it was reasonable to prolong the stop once there was
probable cause to support an arrest for obstructing a police
officer.
(b)
Search of the Vehicle
Although the defendants argue that the plaintiffs have not
made a claim regarding the search of the vehicle, this Court finds
that based on the plaintiffs’ incorporation paragraphs in their
amended complaint (incorporating by reference their version of the
facts), the search of the vehicle is an asserted claim in this
action.
Thus, this Court will address it.
However, this Court finds that it only needs to address the
argument
as
applied
to
Klempa
as
there
Herrnberger actually searched the vehicle.
is
no
evidence
that
Neither Mrs. Pegg nor
Mr. Pegg testified that they saw Herrnberger searching the vehicle
or have provided other evidence to support such a finding.
17
Mrs.
Pegg stated that Herrnberger was on the driver’s side of the
vehicle but that she did not see him actually search the vehicle.
Furthermore, Mrs. Pegg testified that any evidence of a search was
on the passenger side of the vehicle.
To the contrary, Mrs. Pegg
testified that there was evidence of the passenger side search
based on the placement of the jalapeno peppers and the cookie
crumbs bag.
Mr. Pegg stated that other than Klempa’s search of
Mrs. Pegg’s purse and of the passenger side of the car, he was
unaware of a further search of the vehicle.
Accordingly, a
reasonable juror would not be able to find that Herrnberger was
involved in any search of the vehicle.
(c)
Arrest
Herrnberger asserts that Mr. Pegg’s arrest was lawful because
he failed to follow officer orders. Moreover, Herrnberger contends
that the unlawful arrest claim fails because Klempa rather than
Herrnberger
effectuated
Mr.
Pegg’s
arrest.
Additionally,
Herrnberger argues that even if he arrested Mr. Pegg, Mr. Pegg’s
failure to exit the vehicle constituted obstruction under West
Virginia law and thus he was lawfully arrested.
The plaintiffs argue that Herrnberger’s use of force was
objectively unreasonable because the arrest itself was unlawful as
Mr. Pegg could refuse to exit his vehicle because the stop had
extended past a point where the scene needed to be controlled for
officer safety.
18
Mr. Pegg was arrested for obstructing a police officer in
violation of West Virginia Code § 61-5-17(a).
that:
That section states
“A person who by threats, menaces, acts or otherwise
forcibly or illegally hinders or obstructs or attempts to hinder or
obstruct a law-enforcement officer, probation officer or parole
officer acting in his or her official capacity is guilty of a
misdemeanor . . . .”
W. Va. Code § 61-5-17(a).
The West Virginia
Supreme Court had held “that actual force or violence is not a
necessary element of the crime of obstructing an officer as defined
by West Virginia Code § 61-5-17.” State v. Srnsky, 582 S.E.2d 859,
867 (W. Va. 2003).
However, a defendant who is “simply asking
questions” in an orderly manner is not guilty under this statute.
Id. (citing State v. Jarvis, 310 S.E.2d 467, 470 (1983); Wilmoth v.
Gustke, 373 S.E.2d 484, 486 (1988).
The West Virginia Supreme
Court curtailed this finding by finding that “the charge of
obstructing an officer may be substantiated when a citizen does not
supply identification when required to do so by express statutory
direction or when the refusal occurs after a law enforcement
officer has communicated the reason why the citizen’s name is being
sought in relation to the officer’s official duties.”
Id. at 868.
Further, because an arrest is a “seizure of the person,”
individuals are protected from unreasonable arrests under the
Fourth Amendment, and, subject to certain exceptions not present
here, arrests are reasonable only if based on probable cause.
19
Dunaway v. New York, 442 U.S. 200, 213 (1979).
The Supreme Court
has made clear that probable cause exists “when the ‘facts and
circumstances within the officer’s knowledge . . . are sufficient
to warrant a prudent person, or one of reasonable caution, that the
suspect has committed, is committing, or is about to commit an
offense.’”
Wilson v. Kittoe, 337 F.3d 392, 398 (4th Cir. 2003)
(citation omitted).
Notably, a court determining whether probable
cause exists must consider under the Fourth Amendment, probable
cause for arrest “exists where the facts and circumstances within
[the
officer’s]
knowledge
and
of
which
[he]
had
reasonably
trustworthy information are sufficient in themselves to warrant a
man of reasonable caution in the belief that an offense has been or
is being committed by the person to be arrested.”
U.S. at 208 n.9 (citations omitted).
Dunaway, 442
And, in this regard, two
factors in particular govern the determination of probable cause,
namely “the suspect’s conduct as known to the officer, and the
contours of the offense thought to be committed by that conduct.”
Brown v. Gilmore, 278 F.3d 362, 366–67 (4th Cir. 2002).
This Court first notes that Herrnberger did not complete the
actual arrest of Mr. Pegg.
According to Mr. Pegg, Klempa was the
officer who placed him under arrest.
Thus, this Court first finds
that this claim fails as Mr. Pegg himself has admitted that
Herrnberger was not the arresting officer.
20
However, this Court
will also address this argument as if Herrnberger had completed the
arrest.
In this case, the conduct known to Herrnberger was that Mr.
Pegg was immediately agitated when approached by Klempa, to the
point
that
Klempa
felt
it
necessary
to
call
for
back
up.
Additionally, Klempa informed Herrnberger that he wanted to show
Mr. Pegg the burned out license plate light.
As stated above,
based on this information, Herrnberger did not violate Mr. Pegg’s
constitutional rights by requesting that Mr. Pegg exit the vehicle.
Mr. Pegg himself has testified that when asked to exit the
vehicle he refused two commands, one from Klempa and one from
Herrnberger.
Herrnberger
Thus,
from
at
that
carrying
point,
out
his
Mr.
lawful
Pegg
was
duties.
hindering
Mr.
Pegg
testified that he first said “No.” and then the second time
responded, “Why?”.
Although the West Virginia Supreme Court has
held that mere questioning is not enough, the questioning must
still be done in an orderly manner.
Here, Mr. Pegg first refused
without asking any questions and then asked “Why?” upon the second
command.
As such, it was reasonable for Herrnberger to believe
that probable cause existed to arrest Mr. Pegg for obstruction
given the surrounding circumstances and Mr. Pegg’s failure to
follow Herrnberger’s lawful orders.
ii.
Use of Force
21
Mr. Pegg testified that (1) Herrnberger unbuckled Mr. Pegg’s
seatbelt and (2) Herrnberger placed his hand on Mr. Pegg to remove
him from the vehicle.
However, Herrnberger testified that he does
not remember placing his hand on Mr. Pegg.
Herrnberger
argues
that
the
minimal
contact
made
by
Herrnberger to Mr. Pegg’s shoulder was not excessive, especially
given Herrnberger’s objectively reasonable belief that Mr. Pegg’s
actions constituted a crime.
Herrnberger cites the plaintiffs’
expert who himself concedes that the force used by Herrnberger to
remove Mr. Pegg from the vehicle was not excessive.
Further,
Herrnberger asserts that the contact was minimal, that Mr. Pegg had
refused the lawful orders of the police officers, and that Mr. Pegg
exited the vehicle willfully.
The plaintiffs assert that the force used against Mr. Pegg to
remove him from the vehicle was much more than described by
Herrnberger.
This issue of fact, the plaintiffs argue, supports a
determination that summary judgment is not appropriate.
Force
is
not
considered
excessive
if
it
is
objectively
reasonable under the circumstances facing a police officer, without
regard
to
the
officer’s
underlying
intent.
Objective
reasonableness is judged from the point of view of a reasonable
officer on the scene.
The reasonableness of the force employed is
assessed considering the totality of the circumstances, including
“the severity of the crime at issue, whether the suspect poses an
22
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.”
Sigman v. Town of Chapel Hill, 161 F.3d 782,
786 (4th Cir. 1998) (citing Graham v. Connor, 490 U.S. 386, 396-97
(1989)).
This evaluation is guided by the pragmatic considerations
of the moment and not by those that can be hypothesized
from an armchair.
Thus, the reasonableness of a
particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight. The calculus of
reasonableness must embody allowances for the fact that
police officers are forced to make split-second
judgments-in circumstances that are tense, uncertain, and
rapidly evolving-about the amount of force that is
necessary in a particular situation.
Sigman, 161 F.3d at 787 (citing Graham, 490 U.S. at 396-97).
A
court’s focus should be on the circumstances at the moment the
force was used, given that officers on the beat are not often
afforded the luxury of armchair reflection.
Greenidge v. Ruffin,
927 F.2d 789, 791-92 (4th Cir. 1991).
The
plaintiffs’
expert
testified
at
his
deposition
that
assuming it was appropriate to arrest Mr. Pegg, the force used to
effectuate the arrest was not excessive.
ECF No. 50-2 at 81.
Further, Mr. Pegg testified that Herrnberger’s physical interaction
with him included Herrnberger’s unbuckling of his seat belt and
grabbing Mr. Pegg’s arm to remove him from the vehicle.
Mr. Pegg
stated that after Herrnberger’s initial contact, he voluntarily
left the vehicle and thereafter freely walked to the back of his
23
vehicle.
Thereafter, Herrnberger did not have physical contact
with Mr. Pegg.
Given that this Court has found that Mr. Pegg was lawfully
given the request to exit the vehicle and was lawfully arrested,
this Court cannot find, based on the evidence, that Herrnberger’s
use of force was excessive. According to Mr. Pegg’s version of the
facts, he was asked twice to exit the vehicle.
After failing to
exit the vehicle, Herrnberger then unbuckled his seat belt and
physically began to remove Mr. Pegg from the vehicle.
At this
point, there was enough probable cause to arrest Mr. Pegg for
obstruction.
Thus, some force was allowable to make that arrest
given Mr. Pegg’s agitation, which he has testified to, and his
failure to follow the officers’ lawful commands to exit the
vehicle.
Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002)
(finding that it is “well established that the right to make an
arrest carries with it the right to use a degree of physical
coercion or threat thereof to effect the arrest”) (citing Saucier,
121 S.Ct. at 2160).
Further,
the
plaintiffs
have
testified
that
when
Klempa
approached the car initially he was very close to the fog line and
the plaintiffs’ video shows that four cars went by in the eighteen
seconds
of
footage
that
encompassed
Mr.
Pegg
being
removed.
Additionally, the stop took place at night on New Year’s Eve.
These facts support a finding that Herrnberger’s actions were
24
reasonable given the concern for officer safety if Mr. Pegg was not
removed quickly or the officers were not removed from close
proximity to the fog line and approaching vehicles.
Accordingly,
no reasonable jury would find that Herrnberger’s use of force in
removing Mr. Pegg from the vehicle was excessive.
b.
In
his
Klempa
motion
for
summary
judgment,
Klempa
mirrors
the
arguments made in Herrnberger’s motion for summary judgment:3
the
Peggs were lawfully stopped, the driver and/or passenger may be
asked to exit a vehicle during a lawful stop, and Mr. Pegg refused
to follow officer orders and thus obstructed the officers handling
of a lawful traffic stop.
The
plaintiffs’
response
to
Klempa’s
motion
for
summary
judgment asserts the same, or very similar arguments, as those
provided in response to Herrnberger’s motion for summary judgment.
Klempa
asserts
the
following
to
the
plaintiffs’
counterstatement of the facts: (1) Klempa’s request for backup was
not based on an improper purpose, (2) Klempa had not conclusively
decided to give Mr. Pegg a warning, (3) Mrs. Pegg’s video and the
plaintiffs’ testimony supports a finding that the officers were at
risk and the plaintiffs were not parked at a safe distance off the
3
This Court notes that a significant amount of argument has
been provided through the motions for summary judgment. This Court
has attempted to avoid repeating arguments where they overlap, for
all parties, as there was significant overlap throughout the
motions.
25
road, (4) Mr. Pegg testified that he voluntarily left his vehicle
rather than being “dragged” out, and (5) there are no alleged
causes of action for the search of the Peggs’ vehicle.
Further, Klempa argues that the stop was not unlawfully
extended because the stop had not been completed even if Klempa had
decided to not give Mr. Pegg a citation.
Additionally, Klempa
asserts that Rodriguez is distinguishable as the “mission” of the
traffic stop was not only to inform Mr. Pegg that his light was out
but also encompassed officer safety.
i.
Length of Stop
(a)
Exiting the Vehicle
The plaintiffs argue that Klempa’s decision to call for back
up and prolong the stop, past providing Mr. Pegg with a warning,
was unconstitutional. However, as cited previously, an officer may
request that a person exit the vehicle after a lawful traffic stop
has been made based only on the initial probable cause for the
traffic stop.
Mimms, 434 U.S. at 108-111.
In this case, Mr. Pegg
stated that he was “immediately agitated” when Klempa initially
interacted with him and that he did at first refuse to provide
identification.
Further, Klempa testified that he wanted to show
Mr. Pegg the burned out license plate light and also remove himself
from
being
close
to
or
over
the
fog
line.
Based
on
the
circumstances and for the same reasons as those applicable to
Herrnberger, this Court finds that Klempa’s request for backup and
26
request that Mr. Pegg exit the vehicle was not an unreasonable
request and did not unlawfully prolong the traffic stop.
(b)
Search of Vehicle
As stated previously, this Court believes that the plaintiffs
have made a claim regarding the search of the vehicle.
Mrs. Pegg
has testified that she provided consent for Klempa to search her
purse but did not provide consent for Klempa to search the vehicle.
Mrs. Pegg stated that Klempa searched the passenger side of the
vehicle which resulted in him finding a bag of cookie crumbs and
jalapeno peppers.
Mrs. Pegg and Mr. Pegg stated that after Klempa
found the cookie crumbs he inquired into whether or not the crumbs
were “shake,” a term for marijuana.
Mrs. Pegg testified that the
search of the vehicle occurred after Mr. Pegg had been placed in
the back of Klempa’s cruiser and after she had been physically
searched for weapons.
“An
officer’s
inquiries
into
matters
unrelated
to
the
justification for the traffic stop . . . do not convert the
encounter into something other than a lawful seizure, so long as
those inquiries do not measurably extend the duration of the stop.”
Arizona v. Johnson, 555 U.S. 323, 333 (2009) (citation omitted).
Thus, an officer may search a vehicle’s passenger compartment when
he has reasonable suspicion that an individual, whether or not the
arrestee, is “dangerous” and might access the vehicle to “gain
immediate control of weapons.”
Michigan v. Long, 463 U.S. 1032,
27
1033 (1983) (citation omitted).
In addition, the Court may
consider during a Terry investigation that if the person is not
placed
under
arrest,
he
will
be
permitted
to
reenter
his
automobile, and he will then have access to any weapons inside.
Long, 463 U.S. at 1051-52 (citing United States v. Powless, 546
F.2d 792, 795-96, cert. denied, 430 U.S. 910 (8th Cir. 1977)).
Additionally, the Court may consider if “the suspect may be
permitted to reenter the vehicle before the Terry investigation is
over, and again, may have access to weapons.”
Id.
As will be discussed later, Mrs. Pegg has testified that a
Terry frisk was performed by Herrnberger and her identification was
checked. Thereafter, a search of the passenger side of the vehicle
was completed by Klempa and the vehicle was eventually released to
Mrs.
Pegg.
However,
the
plaintiffs
argue
that
Klempa
and
Herrnberger’s questioning of them about the cookie crumbs and their
possible use of marijuana, proves that the search of the vehicle
was only to try and find contraband in the vehicle.
On the other hand, the law, as cited above, allows for the
search of passenger compartments and the area in which a person may
have access to weapons inside.
In this case, the vehicle was
released to Mrs. Pegg who had just seen her husband arrested and
placed in a police cruiser.
Further, Mrs. Pegg testified that she
opened the car door to ask questions of the officers.
During an
emotional interaction such as the one in this case, it would be
28
reasonable for an officer to believe that a search of the passenger
compartment that could be reached by Mrs. Pegg would ensure that
Mrs. Pegg could not reach any weapons and could have the vehicle
safely released to her.
As such, Mrs. Pegg, because of the
circumstances leading up to the search of the vehicle, could
reasonably be believed to be a danger to the officers once she was
allowed to reenter the vehicle. Accordingly, this Court finds that
a reasonable jury would find that the search of the vehicle was not
a constitutional violation.
(c)
Arrest
Based on this Court’s analysis in its section addressing Mr.
Pegg’s arrest in regards to Herrnberger, this Court also finds that
Klempa’s actions in arresting Mr. Pegg were not violative of Mr.
Pegg’s constitutional rights and could not be found to have been
violative by a reasonable jury.
ii.
Excessive Force
Klempa argues that the severity of the crime, obstruction,
supports justification
reasonable.
for the use of force and such force was
Klempa asserts that there was no “excessive force”
because the only force applied was the unbuckling of Mr. Pegg’s
seatbelt and the force used to handcuff and escort him to the
vehicle.
For the same reasons as applicable to Herrnberger, this Court
finds that Klempa did not exert excessive force in effectuating the
29
removal of Mr. Pegg from the vehicle.
Further, Klempa did not
exert excessive force in handcuffing Mr. Pegg, frisking him, and
putting him in Klempa’s police cruiser.
used in executing an arrest.
Again, some force may be
Brown, 278 F.3d at 369.
Mr. Pegg
himself testified that he was not physically harmed after being
removed from his vehicle. Thus, no reasonable jury would find that
the force exerted by Klempa was excessive or a violation of Mr.
Pegg’s constitutional rights.
3.
Count IV: Unlawful Detention and Arrest - Mrs. Pegg
a.
Herrnberger
Mrs. Pegg stated that the following interactions occurred
between herself and Herrnberger: (1) Herrnberger had Mrs. Pegg lift
her shirt to expose her midriff so that he could check for weapons
in her waistband, and (2) Herrnberger completed a Terry frisk of
Mrs. Pegg that did not include her midriff which he had already
checked.
Herrnberger stated that he would have completed a Terry
frisk on Mrs. Pegg, if he in fact completed one, for officer
safety.
Herrnberger asserts that Mrs. Pegg was never restrained,
detained, or arrested as the vehicle was ultimately released to her
and she was free to leave the scene.
Herrnberger further argues
that she was not unlawfully detained as the traffic stop was lawful
and it was appropriate to ask her to retrieve her license before
releasing the vehicle to her.
Additionally, Herrnberger contends
30
that his interactions with Mrs. Pegg were reasonable given Mrs.
Pegg’s failure to follow Herrnberger’s directions to remain in the
vehicle and to leave the passenger side door closed.
Herrnberger
asserts that checking her waistband and performing a Terry frisk
were reasonable actions to maintain the safety of the officers
given Mr. Pegg’s defiant behavior toward the officers and Mrs.
Pegg’s refusal to follow Herrnberger’s orders to stay in the
vehicle given that her husband was being arrested.
i.
Search of Vehicle and Purse
As this Court found above, in addressing Mr. Pegg’s claims,
there is no evidence that Herrnberger participated in the search of
the plaintiffs’ vehicle or Mrs. Pegg’s purse.
Accordingly, this
Court will only address this argument as to Klempa.
ii.
Identification and Exit of the Vehicle
In this case, the evidence shows that Herrnberger first
obtained Mrs. Pegg’s identification and ran it through the system
before asking that she exit the vehicle.
Once he asked her to exit
the vehicle, he asked her to expose her waistband so that he could
do a visual check for weapons.
Thereafter, he performed a pat
down, or Terry frisk, along Mrs. Pegg’s sides. Mrs. Pegg testified
that she was uncomfortable but that Herrnberger did not cup her
breasts or otherwise perform the frisk inappropriately.
Mrs. Pegg
has also testified that during the incident she was wearing formfitting jeans, a top, a bra, and a jacket.
31
An officer may “‘in the interest of personal safety,’ request
that the passengers in the vehicle provide identification, at least
so long as the request does not prolong the seizure.”
United
States v. Soriano-Jarquin, 492 F.3d 495, 500-01 (4th Cir. 2007);
United States v. Vaughan, 700 F.3d 705, 710 (4th Cir. 2012).
Additionally, a police officer may order a passenger to exit the
vehicle because of the safety interest that attaches to officers’
interactions with passengers as well as with drivers, because
passengers may likewise present to officers who interrupt their
journey a risk of personal harm. Maryland v. Wilson, 519 U.S. 408,
410-414 (1997).
This is so because the “danger to an officer from
a traffic stop is likely to be greater when there are passengers in
addition to the driver in the stopped car[.]”
Id.
Herrnberger’s request for Mrs. Pegg’s identification was
lawful as it occurred right as Mr. Pegg was placed in the police
cruiser or immediately thereafter so that the seizure was not
prolonged.
Soriano-Jarquin, 492 F.3d at 500-01.
Further, this
Court has held that the subsequent search of the vehicle did not
prolong the stop past a constitutionally permissible point as an
officer, in the interest of safety, must ensure that a passenger
who is having a vehicle released to her does not have any weapons
that could threaten officer safety.
This same rationale, as is
seen based on the case law cited above, applies to Herrnberger’s
request that Mrs. Pegg exit the vehicle.
32
iii. Terry Frisk and Waistband Search of Mrs. Pegg
In a Terry stop, an officer may detain an individual for
investigatory purposes.
See Terry v. Ohio, 392 U.S. 1 (1968).
This is a seizure of the person, as the individual is not free to
leave
while
the
officer
conducts
further
investigation.
“Accordingly, to conduct a Terry stop consistently with the Fourth
Amendment, the officer must have a reasonably articulable suspicion
that the person stopped was, is, or is about to be, engaged in
criminal activity.” United States v. Melgar, 927 F. Supp. 939, 947
(E.D. Va. 1996), aff’d, 139 F.3d 1005 (4th Cir. 1998) (citing
Terry,
392
U.S.
“commonsensical
at
30).
proposition,”
training and experience.
154 (4th Cir. 1993).
probable cause.
This
reasonable
crediting
the
suspicion
officer’s
is
a
special
United States v. Lender, 985 F.2d 151,
It is, moreover, a lesser showing than
United States v. Perrin, 45 F.3d 869, 872 (4th
Cir.), cert. denied, 515 U.S. 1126 (1995).
Thus, factors to be
considered when determining whether a stop violated the Fourth
Amendment
include:
an
area’s
crime
rate;
the
nature
of
the
questionable activity observed; the time of day; any suspicious
behavior of the suspect; and the practical experience of officers
involved in the stop.
United States v. Lender, 985 F.2d 151, 154
(4th Cir. 1993).
It is important to note that it is not significant that an
officer does not detect a bulge in a person’s clothing.
33
Courts
recognize that a variety of common clothing can conceal a weapon
without a tell-tale bulge.
See United States v. Douglas, 964 F.2d
738, 740 (8th Cir. 1992) (holding that the officer acted reasonably
given that the suspect “was wearing a long coat which could have
concealed a weapon”); United States v. Buchannon, 878 F.2d 1065,
1067 (8th Cir. 1989) (finding that the officer “was justified in
‘patting down’ Buchannon . . . [because] appellant was a larger
man, wearing a long winter coat which might have concealed a
weapon”).
Here, based on the totality of the circumstances, it was
reasonable for Herrnberger to have an articulable suspicion that
Mrs. Pegg may be a danger to officer safety once she exited the car
or once she was allowed to leave in the vehicle.
In considering the Terry factors, there has not been any
evidence regarding the crime rate of the area where the plaintiffs
were stopped.
However, the activity observed by Herrnberger
supports a frisk.
At the time he asked Mrs. Pegg to exit the
vehicle and thereafter performed the frisk, Mr. Pegg had been
arrested after exhibiting agitation and failing to follow officer
commands.
door
and
Further, Mrs. Pegg has testified that she opened the
was
yelling
listening to her.
to
the
officers
because
they
were
not
Given the lead up to such actions, it would be
reasonable for an officer to believe that the passenger, Mrs. Pegg,
was also agitated and a risk to his safety.
34
Additionally, the time of day and the day itself is supportive
of such a frisk.
It was dark at the time the car was stopped and
it was also New Year’s Eve.
Finally, Herrnberger has testified
that although he does not remember performing the Terry frisk, he
would have only done so for officer safety.
Based on the totality of the circumstances, that all of the
factors weigh in Herrnberger’s favor except the crime rate (because
evidence was no provided by either side), this Court finds that a
reasonable
jury
could
not
find
that
Herrnberger’s
physical
interactions with Mrs. Pegg were constitutional violations.
b.
Klempa
i.
Physical Interaction with Mrs. Pegg
Klempa asserts that the same arguments apply to Mrs. Pegg as
against Mr. Pegg.
Klempa further adds that Mrs. Pegg was neither
arrested or charged, and that no allegations have been made that
Klempa had any physical contact with her or was the one who ordered
her to exit the vehicle.
Mrs. Pegg has only testified that Herrnberger physically
interacted with her and thus this Court has only reviewed this
allegation in regards to Herrnberger (above).
ii. Search of Vehicle and Mrs. Pegg’s Purse
This Court has already addressed the search of the vehicle and
incorporates those findings here.
search of Mrs. Pegg’s purse.
35
It will now consider Klempa’s
The plaintiffs assert that Klempa failed to discuss the search
of Mrs. Pegg’s purse.
The plaintiffs contend that the search of
Mrs. Pegg’s purse was intrusive and unreasonable because the
officers had no basis for believing that contraband would be found.
The plaintiffs argue that the officers rifled through Mrs. Pegg’s
purse.
Mrs. Pegg testified that she provided consent for the search
of her purse.
An individual waives his reasonable expectation of
privacy when he voluntarily consents to a search, and the ensuing
search comports with the Fourth Amendment to the extent that it is
consistent with the consent.
218, 219 (1973).
Schneckloth v. Bustamonte, 412 U.S.
Whether consent is voluntarily given, as opposed
to coerced by law enforcement pressure, is judged by the totality
of the circumstances.
United States v. Mendenhall, 446 U.S. 544,
557 (1980) (citing Schneckloth, 412 U.S. at 227).
Factors to
consider in this analysis include the location of the encounter;
the number of officers and suspects present; whether the officers
displayed
their
weapons;
whether
there
was
physical
contact;
whether the officers used language or a tone of voice indicating
threats or compulsion; the subjective state of mind, age, and
intelligence of the consenting party; the length of the detention;
and the individual’s knowledge of his right to refuse consent.
United States v. Watson, 423 U.S. 411, 424 (1976).
36
This Court finds that it is unclear whether Mrs. Pegg’s
consent was voluntarily given.
One factor that weighs in Mrs.
Pegg’s favor is that she testified that Herrnberger told her that
she would be arrested, like her husband, if she did not shut her
door.
Mrs. Pegg had opened her door to inquire into why the
officers were arresting her husband, and Herrnberger then returned
to the vehicle where Mrs. Pegg was still sitting and told her to
shut her door or she might be arrested, that Mr. Pegg was being
arrested because he did not do what the officers told him to do,
and that officers “do things for our safety and for yours . . . .”
Id. at 50-52.
Further, there was physical contact between Mrs.
Pegg and Herrnberger when she was frisked. Additionally, Mrs. Pegg
was likely in an emotional state at this time after watching her
husband be arrested.
Mrs. Pegg is an adult and of reasonable
intelligence to consent as she has testified that she completed an
associate’s degree. The length of the detention was also short, as
Mr. Pegg testified that it was approximately twenty minutes.
The other factors, however, do not weigh in Mrs. Pegg’s favor.
The location of the search was not in an enclosed space, it was
cold but there is no evidence that the temperature was unbearable,
and the search was conducted away from the fog line where vehicles
were passing by.
Further, there is no evidence that the officers
displayed
weapons
their
at
any
outnumbered the plaintiffs by one.
37
time
and
the
officers
only
Given the factors in Mrs. Pegg’s favor, it is unclear what her
subjective state of mind was at the time she was asked for consent
to search her purse or her knowledge of her right to consent after
being told by Herrnberger that she needed to do what the officers
told her to do.
However, this Court has previously found in this order that
Mrs.
Pegg
could
be
physically
searched
and
the
passenger
compartment searched giving the fact that she was upset because her
husband had been arrested, Mr. Pegg had displayed agitation, and
Mrs. Pegg had failed to initially follow Herrnberger’s order to
close her door.
Thus, this Court finds that even without Mrs.
Pegg’s consent, Klempa was reasonable in searching Mrs. Pegg’s
purse to ensure officer safety at that time.
“[P]assengers,
no
less
than
drivers,
possess
a
reduced
expectation of privacy with regard to the property that they
transport in cars, which trave[l] public thoroughfares, seldom
serv[e] as ... the repository of personal effects, are subjected to
police stop and examination to enforce pervasive governmental
controls [a]s an everyday occurrence, and, finally, are exposed to
traffic accidents that may render all their contents open to public
scrutiny.”
Wyoming
v.
Houghton,
526
U.S.
295,
303,
(1999)
(internal citations and quotations removed).
As passengers are subject to a lower expectation of privacy,
and for the same reasons as reviewed by this Court for allowing the
38
search of the passenger compartment, Klempa was reasonable in
searching Mrs. Pegg’s purse.
To reiterate, the vehicle was
eventually released to Mrs. Pegg and the steps taken by the
officers, the searches and the checking of her identification, made
the release of that vehicle safe.
Klempa
did
not
violate
Mrs.
As such, this Court finds that
Pegg’s
constitutional
rights
by
searching her purse.
5.
Fourteenth and First Amendment Claims
a.
Fourteenth Amendment Claims
Herrnberger argues that any Fourteenth Amendment claim must
fail as Mr. Pegg has admitted that no inappropriate action occurred
after he was arrested and Fourteenth Amendment claims only cover
post-arrest
and/or
pretrial
detainee
situations.
Klempa’s
arguments mirror those of Herrnberger as outlined above.
Klempa
also adds that due to his lack of contact with Mrs. Pegg these
claims clearly fail as to Mrs. Pegg.
Section 1983 is not a stand alone claim and must be asserted
in
conjunction
with
substantive
elsewhere in the law.
(1994).
federal
rights
provided
for
Albright v. Oliver, 510 U.S. 266, 271
Thus, “analysis of an excessive force claim brought under
§ 1983 begins with identifying the specific constitutional right
allegedly
infringed
by
the
challenged
application
of
force.”
Sawyer v. Asbury, 537 F. App’x 283, 290 (4th Cir. 2013) (quoting
Orem v. Rephann, 523 F.3d 442, 445 (4th Cir. 2008) (internal
39
citation and quotation omitted)). The Fourth Circuit has thus held
that “claims of post-arrest excessive force against an arrestee or
pre-trial detainee, as here, are governed by the Due Process Clause
of the Fourteenth Amendment, which prohibits before conviction the
use of excessive force that amounts to punishment.” Sawyer, 527 F.
App’x at 290 (citation and internal quotation omitted).
In
this
case,
the
plaintiffs
have
not
made
any
claims
regarding post-arrest excessive force or any excessive force that
amounted to punishment.
Mrs. Pegg was never arrested.
Further,
Mr. Pegg has testified that he was not harmed other than the
allegations
he
Accordingly,
the
has
made
regarding
plaintiffs’
exiting
Fourteenth
the
Amendment
vehicle.
claims
are
unfounded and no reasonable jury could find that the defendants
committed such a constitutional violation.
b.
First Amendment Claims
Herrnberger asserts that the plaintiffs have failed to provide
any evidence, other than their own beliefs, that their First
Amendment
rights
were
infringed
upon.
Further,
Herrnberger
reiterates that there is no evidence that the stop was extended for
an
unlawful
purpose,
namely
to
search
for
illegal
drugs.
Herrnberger argues that Mr. Pegg was arrested for repeatedly
refusing to follow law enforcement officers’ orders and not because
he was verbally opposing the police officers.
40
The plaintiffs argue that Mr. Pegg’s First Amendment rights
were infringed upon when the search was unlawfully extended and Mr.
Pegg was taken from his vehicle because he challenged the unlawful
extension and then his arrest.
The plaintiffs assert that verbal
criticism of police officers is clearly protected by the First
Amendment.
Klempa argues that the plaintiffs have offered no evidence
that Mr. Pegg was arrested because he was asserting his First
Amendment rights.
To the contrary, Klempa asserts that Mr. Pegg
was arrested because he repeatedly refused the lawful order of the
officers.
Klempa contends that the plaintiffs have offered no
response as to Mrs. Pegg’s First Amendment claims.
In
Reichle,
the
Supreme
Court
specifically
addressed
a
qualified immunity defense as applied to a claim such as Mr. Pegg’s
claim raised in this action:
Here, the right in question is not the general right to
be free from retaliation for one’s speech, but the more
specific right to be free from a retaliatory arrest that
is otherwise supported by probable cause. This Court has
never held that there is such a right.
Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012).
Further, that
same court has held that where “the officer . . . decide[s] to
arrest the suspect because his speech provides evidence of a crime
or
suggests
a
potential
threat”
the
connection
between
the
officer’s alleged animus and the alleged constitutional injury is
weakened.
Id. at 2095.
41
This Court has found that Mr. Pegg’s arrest was supported by
probable cause.
Because a right to be free from a retaliatory
arrest that is otherwise supported by probable cause has not been
held by the Supreme Court to exist, Mr. Pegg’s argument fails.
Further, even if such a right existed, the evidence shows that the
officers in this case reasonably believed that Mr. Pegg’s speech
was a threat and obstructed their investigation. As such, there is
no evidence that there is a causal relationship between any
protected speech and the officers’ actions.
Accordingly, no
reasonable juror could find that Mr. Pegg’s First Amendment rights
were violated.
The same is true for Mrs. Pegg.
Mrs. Pegg was not arrested
and the plaintiffs have not expanded upon their reasoning for
upholding a First Amendment claim for Mrs. Pegg.
related
to
the
allegations
regarding
However, if
Herrnberger’s
physical
interaction with her and Klempa’s search of the vehicle, this Court
has found that such actions were reasonable.
Further, there is no
evidence that those actions were taken because Mrs. Pegg asked
questions of the officers rather than for the officer’s own safety.
Accordingly, this claim fails as well.
C.
Qualified Immunity: Clearly Established
This Court has already found that one prong of Saucier, the
constitutional violation prong, has not been met.
The Court notes
that it has applied Rodriguez in doing so although Rodriguez, a
42
2015 case, was not clearly established law at the time of the 2012
offense.
conduct
Accordingly, this Court finds that the defendants’
does
not
constitute
a
constitutional
violation
under
clearly established law.
D.
Qualified Immunity: Willful and Intentional - State Law Claims
Based on the same reasons forwarded for qualified immunity
regarding the federal law claims, Herrnberger and Klempa assert
that the plaintiffs’ state law claims fail because they are
entitled to qualified immunity as to those claims as well. The
plaintiffs assert that their arguments regarding the federal claims
are applicable here as well.
This Court incorporates its findings that a constitutional
injury did not occur as the defendants’ actions were reasonable
pursuant to clearly established law. This Court further finds that
the
defendants’
actions
were
not
“fraudulent,
otherwise oppressive” to the plaintiffs.
malicious,
or
West Virginia Reg’l Jail
& Corr. Facility Auth., 766 S.E.2d at 762.
As stated above, the stop of Mr. Pegg was lawful and the
defendants’ actions thereafter were reasonable given the stop,
later arrest of Mr. Pegg, and need to ensure officer safety. There
is
no
evidence
that
the
officers’
actions
were
fraudulent,
malicious, or otherwise oppressive to the plaintiffs.
The plaintiffs have pleaded in their amended complaint that
the officers’ actions were malicious and intentional.
43
Mrs. Pegg
has testified that the officers made disparaging remarks about her
husband’s profession and about the possible drug usage of her
father-in-law. However, a threatening tone or rude remarks do not,
taken
alone,
raise
an
officer’s
conduct
to
the
level
of
a
constitutional violation. Carter v. Jess, 179 F. Supp. 2d 534, 546
(D. Md. 2001)(finding that even where a police officer’s conduct
was “hardly in keeping with the behavior, decorum, professionalism,
and restraint that the public expects from law enforcement,” an
arrestee’s conduct “not indicative of someone inclined to obey a
lawful order” outweighs such conduct). Thus, this Court finds that
the plaintiffs have not provided any evidence to support such
claims and a reasonable jury could not find in their favor on such
claims. Thus, this Court finds that as to the constitutional state
law claims, the defendants are also entitled to qualified immunity.
E.
State Law Claims
1.
Count VI: Tort of Outrage/Intentional Infliction of
Emotional Distress
Under West Virginia law, intentional infliction of emotional
distress, or the tort of outrage, requires proof of the following
four elements:
(1) that the defendant’s conduct was atrocious,
intolerable, and so extreme and outrageous as to exceed
the bounds of decency; (2) that the defendant acted with
the intent to inflict emotional distress, or acted
recklessly when it was certain or substantially certain
emotional distress would result from his conduct; (3)
that the actions of the defendant caused the plaintiff to
suffer emotional distress; and, (4) that the emotional
44
distress suffered by the plaintiff was so severe that no
reasonable person could be expected to endure it.
Beasley v. Mayflower Vehicle Sys., Inc., No. 13-0978, 2014 WL
2681689, at *4 (W. Va. June 13, 2014) (citing Syl. Pt. 3, in part,
Travis v. Alcon Labs., Inc., 202 W. Va. 369, 504 S.E.2d 419
(1998)).
This Court must “determine whether the defendant’s
conduct may reasonably be regarded as so extreme and outrageous as
to constitute the intentional or reckless infliction of emotional
distress.
Whether conduct may reasonably be considered outrageous
is a legal question, and whether conduct is in fact outrageous is
a
question
for
jury
determination.”
Id.
“An
intentional
infliction claim ‘is a difficult fact pattern to prove.’” Beasley,
2014 WL 2681689, at *4 (citing Hines v. Hills Dep’t Store, Inc.,
193 W. Va. 91, 96, 454 S.E.2d 385, 390 (1994)).
Based on this Court’s analysis above, this Court has found
that the defendants’ conduct was lawful and reasonable given the
circumstances.
Thus, this Court finds that there is no basis that
the officers’ actions were outrageous so as to support a finding,
which the West Virginia Supreme Court has held is a difficult one,
that the plaintiffs are entitled to relief under this claim.
The
officers acted based on Mr. Pegg’s conduct which led to an arrest
for obstruction and the need to ensure officer safety so that the
vehicle could be released to Mrs. Pegg.
As such, a reasonable
juror could not find that the plaintiffs are entitled to relief for
45
the intentional infliction of emotional distress claim they have
forwarded.
2.
Count VII: Battery: Mr. Pegg
Klempa asserts that the battery claim is unfounded as the use
of force was lawful because Mr. Pegg had obstructed the police
officers.
Further,
Klempa
argues
that
requisite intent to commit a battery.
he
did
not
have
the
Herrnberger mirrors these
same arguments.
The West Virginia Supreme Court has cited the Restatement
(Second) of Torts, § 13 (1965)’s recitation of the elements of the
tort of battery:
An actor is subject to liability to another for battery
if (a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person,
or an imminent apprehension of such a contact, and (b) a
harmful contact with the person of the other directly or
indirectly results.
West Virginia Fire & Cas. Co. v. Stanley, 602 S.E.2d 483, 494 (W.
Va. 2004).
Further, that court has found that “[i]n order to be
liable for a battery, an actor must act with the intention of
causing a harmful or offensive contact with a person.”
Id.
(citation omitted).
Both defendants had contact with Mr. Pegg.
However, the
contact with Mr. Pegg was not unlawful and there is no evidence
that Mr. Pegg was actually harmed by the contact.
Further, such
contact was not offensive as the officers did not use excessive
force in this action.
Thus, this claim must also fail.
46
3.
Count VIII: Battery: Mrs. Pegg
The plaintiffs assert that the search of Mrs. Pegg’s person
was
an
offensive
illegal
physical
contact
that
actionable under West Virginia’s battery statute.
is
civilly
Herrnberger
contends that the plaintiffs have failed to support an argument
that the alleged frisk of Mrs. Pegg was unlawful or that Mrs. Pegg
was ever handcuffed, restrained, or arrested.
Klempa argues that
because he neither arrested Mrs. Pegg nor had any physical contact
with Mrs. Pegg this claim is unsupported as asserted against him.
This Court first finds that any claim directed toward Klempa
regarding a battery of Mrs. Pegg fails as there is no evidence that
any contact occurred between Klempa and Mrs. Pegg.
second element for battery is not present.
494.
Thus, the
Stanley, 602 S.E.2d at
Further, for the reasons stated previously in this order,
this Court finds that Herrnberger’s physical contact with Mrs. Pegg
was not unlawful or harmful to Mrs. Pegg.
Although Mrs. Pegg may
have been uncomfortable, the frisk of Mrs. Pegg was done for
officer safety and thus does not constitute a battery.
4.
Count IX: Civil Conspiracy
The
West
Virginia
Supreme
Court
provides
the
following
regarding a claim for civil conspiracy:
a civil conspiracy is a combination of two or more
persons by concerted action to accomplish an unlawful
purpose or to accomplish some purpose, not in itself
unlawful, by unlawful means. The cause of action is not
created by the conspiracy but by the wrongful acts done
by the defendants to the injury of the plaintiff.
47
Dixon v. Am. Indus. Leasing Co., 253 S.E.2d 150, 152 (W. Va. 1979)
(citing 16 Am.Jur.2d, Conspiracy, Sec. 44).
As this Court has
found that neither of the defendants engaged in an unlawful manner,
for unlawful purpose, or by unlawful means, the plaintiffs’ civil
conspiracy claim must fail. Thus, a reasonable jury could not find
that the civil conspiracy claim would stand as it cannot be
asserted without an underlying unlawful act.
V.
Conclusion
Based on the analysis above, this Court finds that the
plaintiffs’ partial motion for summary judgment (ECF No. 49) is
DENIED.
Further, defendant Grant Herrnberger’s motion for summary
judgment (ECF No. 50) and defendant Nathan Tyler Klempa’s motion
for summary judgment (ECF No. 51) are GRANTED.
As such, the
parties’ motions in limine (ECF Nos. 42, 43, 44, 45, 46, 47) are
DENIED AS MOOT.
It is ORDERED that this case be DISMISSED WITH
PREJUDICE and STRICKEN from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
48
DATED:
July 31, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
49
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